NT medical clinic wins over the ACC’s coercive powers

There is a scene near the end if the Coen Brothers’ latest film, Burn After Reading where J. K. Simmons & David Rasche, playing hapless CIA supervisors, wring hands and tear hair at the mounting body-count and sheer confusion that characters played by George Clooney, Frances McDormand, John Malkovich and Brad Pitt have wreaked about them. At one point J. K. Simmons lets fly in frustration with “And what the f**k have this league of morons done now”.

A similar scene would have been played out in the offices of the Australian Crime Commission after the cross-examination of one of its elite staff “Examiners”, The Hon. Jeffrey Phillip Anderson, in the Federal Court in Darwin during a hearing in late June this year. The Hon J. P. Anderson was giving evidence at an application by a remote-area Northern Territory Aboriginal health service, identified only in the Court records by the codename ‘NTD8′, that was resisting the issue of a notice by the ACC to produce medical records of a number of it’s female Aboriginal child patients.

Sophie Black wrote for Crikey earlier this year about an application made by NTD8 for the Federal Court’s duty judge in Darwin, John Reeves, to excuse himself from hearing NTD8′s substantive application on the ground that he was biased. That application was based largely upon a speech made by Justice Reeves to the assimilationist group, the Bennelong Society. Justice Reeves decided not to disqualify himself as he considered that the evidence supporting the application did not meet the legal test for bias. The application for bias, Justice Reeves’ history in the NT’s legal landscape, and his involvement in the Intervention, are matters that Crikey and The Northern Myth will return to in the near future.

No-one from NTD8 was talking to the media about the application due to the extraordinary criminal sanctions provided to the ACC to ensure absolute secrecy about its operations. The only other report at the time on NTD8′s application was a short reference in the National Indigenous Times. The NIT observed that NTD8′s case against the ACC was:

“…believed to be the first serious challenge to the ACC’s …Taskforce, which has coercive powers to obtain details about the incidence of child abuse, neglect and violence in indigenous communities. The clinic…claims the ACC is demanding sensitive information about children aged under 16 years who had sought advice about contraception but who it believes had not been sexually abused.”

The ACC’s National Indigenous Violence and Child Abuse Intelligence Taskforce (NIVCAIT) commenced work in mid-2006 and opened for business in the Territory in October of that year, though the locations of the Darwin and Alice Springs offices of NIVCAIT are secret due to “the nature of the ACC’s work”.

“…not only crack down on the violence that we’ve seen in some communities, but also gather intelligence and assess the size of the problem…[I]t will basically give perpetrators nowhere to go…”

Barker reported that the establishment of NIVCAIT was “…in direct response to the allegations of abuse and domestic violence [allegedly] plaguing communities like Mutitjulu, at Uluru in Central Australia.”

The allegations about Mutitjulu were based on untruths and distorted facts – not that you’d know this from the mainstream media. As the NIT’s Chris Graham reported in Crikey in June this year, the ABC’s once-proud late-night current affairs flagship Lateline created the fiction of the ‘plague’ of violence at Mutitjulu in two broadcasts in April and May 2006:

A month later, however, Lateline followed up the story with a piece entitled ‘Sexual slavery reported in Indigenous community’. Lateline revealed that it had found evidence to back Brough’s claim about paedophile rings. Among several witnesses, it aired the statements of an ‘anonymous youth worker’ whose face was blacked out and voice digitised, purportedly to protect his identity for ‘safety reasons’.

As it turned out, the ‘anonymous youth worker’ was none other than Gregory Andrews, a senior official in Mal Brough’s department. Lateline knew Andrews’ identity and his links to the minister. Lateline knew Andrews had never worked as a ‘youth worker’. Lateline broadcast his claims regardless. Almost every one of them has since collapsed, including a story he spun about reporting incidents of s-xual abuse in Mutitjulu to police.

Since the broadcast, a Northern Territory police investigation, responding to the Lateline allegations, found no evidence whatsoever to support the claim that petrol was being traded for s-x.

As to the p-edophile ring claims, the Australian Crime Commission reported to a Senate Estimates committee a fortnight ago that despite extensive investigations in Central Australia (and throughout the nation) they have uncovered “no information to substantiate that claim”.

The ABC’s Barker reported that NIVCAIT would “bring together the crime fighting skills of state and federal police, the ACC, and other intelligence agencies. More than 30 staff will collect, analyse and share information from remote communities with law enforcement bodies, to maximise efforts to crack down on violence and child abuse.”

Spooks operating on this scale aren’t cheap – as the ACC’s own budget papers reveal, the ACC received additional funding of $11.489m for NIVCAIT through to 2009-10.

The ACC’s website states that NIVCAIT:

“…is adopting an approach which is ‘non punitive’ and respectful of Indigenous people and cultures. National and regional level consultative arrangements will be established, where possible utilising existing structures. In these processes, particular efforts will be made to engage with and involve Indigenous elders, leaders and women’s groups.

The ACC’s CEO, Alastair Milroy, said at the time that the NIVCAIT will deal with more than violence and abuse and the ACC was: “…experienced in dealing with this sort of thing.”

Kevin Kitson, in 2006 the ACC’s Director of Intelligence and now Executive Director, Strategic Outlook and Policy, told Barker:

“We don’t suppose for a moment that we can simply land into any kind of remote community and expect to get people to tell us things that they’ve chosen not to tell over a number of years. But we will look to use a number of contacts we’ve already established and that we know are out there to simply say, How is that (sic) we can best encourage people to tell us their stories?.”

Unh – maybe the ACC would “encourage” people by using its extraordinary star-chamber powers?

Well, not if the Law Society of the NT had anything to say about it. In relation to the proposed use of the ACC’s star-chamber powers in a context where the intervention had already cowed many Aboriginal people in the NT, the Law Society noted that:

Threatening witnesses with goal is unlikely to help if Indigenous people are already facing an environment of threats and intimidation.

In January 2007, Kitson stated that NIVCAIT had been working with a number of agencies “who may have information about child abuse and violence”. NIVCAIT’s main targets appeared now to have shifted from individuals to schools and health clinics, many of which in the NT are run by small aboriginal-owned health services.

Kitson explained that:

“…violence and abuse that go unreported to police but which are known to health and education sectors, that’s the kind of data we want to sweep up with the first major phase of the task force.”

By the end of July 2007 ACC CEO Milroy reported that the 30 officers at NIVCAIT had “logged” over 150 “crimes” in Indigenous communities in the past year, a mere 20 of which had been referred to local police forces for investigation.

But by early 2008 the ACC was complaining that it had hit “a wall of silence” and its frustration with the perceived unwillingness of some non-governmental agencies to provide information about their operations and clients boiled over and it sought to further extend its already draconian powers.

As The Australian’s Simon Kearney reported:

“…investigators, while having significant success uncovering information, have been frustrated by the unwillingness of non-government organisations to provide formal disclosures.

Milroy told Kearney, in a classic example of spook-speak, that the ACC needed to apply its newly-expanded coercive powers to get information on violence, child abuse, substance abuse and porn:

“Coercive powers will provide a clear legal basis and protection for non-government organisations…and individuals to provide confidential information, as well as an environment that is more conducive to gathering personal information. The approval of coercive powers was considered essential to overcome impediments to accessing information collection relating to indigenous violence and child abuse.”

Milroy’s star-chamber would travel to remote communities but would take into account the “…need…to protect the identity of witnesses being questioned.”

The coercive powers would not be used to target victims of abuse or violence, but would be used to:

“…force organisations and individuals to produce documents from which further inquiries would be launched…The ACC will utilise coercive powers in a culturally sensitive manner in order to identify offenders and obtain specific intelligence…”

By early May 2008 the ACC’s operational and administrative competence was again under serious question, largely in relation to the decision by Melbourne Magistrate Philip Goldberg in the long-running Brereton matter.

As Greg Barns noted with uncanny prescience in his article for Crikey on 6 May 2008, while there was much-needed attention being paid to the ACC’s activities elsewhere, there was real concern about the activities of NIVCAIT in the NT:

“But would anyone know whether Milroy’s organisation is living up to its promise to be sensitive to vulnerable Indigenous Australians when the ACC’s processes are conducted in secret?”

That answer would come soon enough. The day after Barns’ article ran in Crikey, NTD8 made its application in the Federal Court in Darwin challenging a notice issued by the ACC Examiner The Hon. J. P. Anderson, requiring that NTD8 produce the confidential medical records of eight child patients of NTD8. Following objections by NTD8, a further amended notice was issued by The Hon J. P. Anderson to NTD8 that specifically sought personal details of the patients, which staff at NTD8 that had treated them and details of any person identified as having sexually assaulted those patients.

Understandably, NTD8 resisted the ACC’s notice. NTD8 considered that if it were to provide the medical records of its patients – given, as all of us do with our own medical practitioners – in the expectation that they would remain confidential, it would lose the trust and confidence that it so carefully had built with its patients over the years. The legal basis for NTD8′s resistance to the ACC’s notice to produce its patient’s medical records was that the ACC’s examiner had not taken the best interests of the eight child patients of NTD8 into account as a primary consideration when issuing the notice.

The obligation that the ACC had to take the ‘best interests’ of NTD8′s child patients into consideration arises from the Australian Parliament’s ratification of the International Convention on the Rights of the Child. That Convention, at Article 3, requires that:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Australian courts, by no lesser an authority than the High Court in Teoh’s case have since 1995 held that, unless there are contrary legislative or executive indications, there is a legitimate expectation that administrative decision-makers will, in relation to decisions concerning children, take the best interests of those children into consideration as a primary consideration.

Even law students and junior lawyers with an eye to later practice in tax or commercial law know of the effect of Teoh’s case and the basic principles enshrined in the Convention. Though not, it appears, those lawyers advising the ACC, NIVCAIT or The Hon J. P. Anderson.

“Counsel:… did you consider that you were bound to take into account the best interests of the relevant children as a primary consideration in making your decision?

Mr Anderson: It was a consideration. It wasn’t the first consideration.

Counsel: The first being a synonym for primary…is that correct?

Mr Anderson: Yes.

…

Counsel: It would appear to follow from your answer…that you do not consider yourself bound as a matter of law at the time you made the decision to take into account the best interests of the children as a primary consideration?

Mr. Anderson: Not as the first consideration, no.”

I can hear the groans from the ACC’s bar table from here.

Unsurprisingly, Justice Reeves found for NTD8 and quashed the notice by the ACC for NTD8 to produce the medical records of its 8 Aboriginal child patients. As revealed in Justices Reeves’ judgment, records from the health clinic show that seven of the girls had the contraceptive device Implanon inserted at the clinic last year. Doctors and staff noted on each record there was “no evidence” of sexual abuse and, therefore, no requirement for mandatory reporting. Crikey understands that in those cases where there was evidence of sexual abuse, and all of those cases were adults, that in compliance with mandatory reporting requirements, NTD8 had already provided those details to NT Police.

But there may be at least one sting in the tail of this sad, sorry story of the ACC and NITCAIV. Because the ACC sought access to the medical records of a (unknown) number of NTD8′s patients who were not children, and to whom this decision will not apply, the ACC may have already accessed those records. Further, there is another, substantially similar case, bought by another Aboriginal health service identified only as NTD9. That health service is believed to be based in the centre of the Territory and that matter was also heard by Justice Reeves and a decision is expected in the near future

And the ACC may be able to get around the decision in NTD8′s case in future by just stating that “in this matter we have taken the best interests of the children into account as a primary consideration.”

The ACC has ruffled a lot of feathers with its heavy-handed intrusion into the NT – not least among the Territory and Federal police forces, where there is a widely-held view that the star-chamber powers of the ACC and NIVCAIT have no place in the investigation of what are regarded as ordinary police matters. As NTD8′s case and others have shown, the ACC has a disturbing propensity for incompetence and, despite their rhetoric about being culturally sensitive, the ACC and NITCAIV operate in a clumsy, ignorant and bullying fashion when dealing with Aboriginal people and their organisations. And there is every indication that the ACC and NITCAIV have learnt from their mistakes or are about to change their ways of operating.

NIVCAIT is looking for a manager of its Intelligence Capabilities and Services unit to work in Alice Springs. The Duty Statement (shhh, its marked “Strictly Confidential”) contains a lot of undecipherable HR-spook-speak, including references to “organised crime”, “strategic and operational intelligence concepts, perspectives and environments. Apart from two lines seeking a demonstrated knowledge of “law and order and related issues facing indigenous communities” there is no reference to any requirement that the successful candidate have ever met an Aboriginal person – let alone have any capacity to operate sensitively in the complex world of the NT’s indigenous milieu and to convince people to divulge their deepest secrets.

And the ACC is contemptuous of their political masters. One of the few means by which the ACC is held to account is that it is required to report to the Parliamentary Joint Committee on the Australian Crime Commission. On September 4 this year, the Chair of the Joint Committee, Senator Steve Hutchins, presented its report to parliament. He had this to say about the ACC’s conduct in relation to that report:

“I find it particularly concerning that when the commission believes that legislative change is required to ensure that it is able to operate effectively it does not even bother to inform its parliamentary oversight committee. This behaviour shows contempt for the committee and its role and I hope the commission will act differently if such an occasion ever arises again. This committee exists for a reason and should not be circumvented.”

According to information on the ACC’s website NIVCAIT’s time runs out in late 2008 and, subject to the ACC’s Board’s approval, it will provide a report on its activities by mid-2009. Now that should make interesting reading – if it is ever released to the public.

Hmmm….although there is too much convoluted legal argument and description for a simple person like myself to understand, I can speak from a medical point of view. Firstly, congratulations to “NTD8″ on their success. Secondly, mandatory reporting by medical personnel is all that is required to report abuse or neglect. The only time I suppose this could fail is when staff are incompetent, unprofessional or act illegally. I would like to think that none of these are going to be the case in a remote Aboriginal community. Thirdly, it is all too much Orwellian and appears to be another example of the special treatment Aboriginal people are lucky enough to receive in this wonderful country of ours.

Normally requests to release medical information can not be done without the consent of the individual concerned (Privacy act). However it seems that the declaration of a “National Emergency” (although I don’t know how it could be called an “emergency” when the issues have been ignored for a pretty long while) overrides this.